Deconstructing I-502

Initial Note:

As an organization dedicated to ending our failed prohibition on cannabis, it was a difficult decision to come out in opposition to Initiative 502. However, it was after a deep cost-benefit analysis – deciphering and examining the legal implications of each page of the initiative – that we came to our conclusion.

We concluded that it’s not legalization, and it’s not a positive step forward. We encourage you to read the initiative yourself, examine both sides and come to your own conclusion. It’s a difficult decision.

With that state, we encourage you to read our multi-part analysis of I-502:

Part 1, It’s not legalization. – Summary: Initiative 502 would not legalize cannabis. It doesn’t remove or alter a single criminal penalty that makes cannabis illegal – it only creates small exceptions for certain activity. Cannabis would be retained as a schedule 1 controlled substance next to heroin under state law. Activities such as passing a joint or possessing 50% more than the “legal” amount, would remain felony charges. Home-growing would remain entirely illegal.

Part 2, No storefronts. – Summary: Initiative 502 is not written to withstand a federal challenge, meaning that the entire distribution and taxation system will be rendered invalid in court. It forces the state to collect taxes from a federal illegal substance – money laundering – putting it in direct conflict with our Federal Controlled Substances Act. Initiative 502’s Campaign Director, Alison Holcomb, is quoted as agreeing that such a system would be preemptable under federal law.

If the distribution system is to take effect, it’s a ridiculous system that hands control over to the Liquor Control Board: they would be empowered with things such as setting the maximum amount of THC in the marijuana sold, setting the maximum number of retail outlets per county, etc.. All business applicants – whether for growing or selling – would be required to submit their fingerprints to the FBI.

Part 3, Impaired science.- Summary: We are firmly against impaired driving – however, the policies in Initiative 502 have nothing to do with impaired driving. It would mandate a strict liability (per se) DUID limit that would find individuals instantly guilty simply for having a certain amount of THC in their blood – creating new criminal penalties for cannabis (with no legal exclusion if you’re a patient). Science has consistently shown that this is not the proper way to measure impairment, and reform groups such as NORML and MPP have fought against such limits for decades. Colorado has twice attempted to implement the same exact limit – they denied it both times after deep public backlash, a lack of scientific consensus and after a working group setup by Colorado’s Legislature voted to not recommend a change – stating mostly that there’s no science to support it, and that it may cause prosecution of the innocent.

Part 4, Stop, smell, convict. – Summary: The above-mentioned DUID limit that Initiative 502 would mandate is a per se policy. This means that if you’re above the designated limit, you literally lose your right to defend yourself in court against the allegation that you were impaired. This is reversing the current system, which forces officers to prove impairment in court in order for a prosecution to take place. Beyond this, initiative 502 does nothing to change probably cause laws, so possessing your “legal” ounce will give them the right to test your blood and prosecute you for a DUID.

Part 5, Drug Czar’s #1 priority. – [We encourage people to pay special attention to the points in this article, which were vital in our conclusion to oppose this initiative]: Summary: Per se DUID limits are one of our Drug Czar’s top national policies. Rather than educating the public, Initiative 502 panders to the fears of the mainstream by implementing an unnecessary new policy that has nothing to do with public safety, and will lead to the prosecution of innocent individuals. Our Drug Czar supports such policies because they make it easy for the prosecution of unimpaired individuals, simply for having consumed a substance days or even weeks ago. Unfortunately this new limit is one of the only provisions in Initiative 502 likely to remain after a federal challenge. Altering this limit anytime in the near future could turn out to be a political impossibility, as “drugged driving” laws are essentially never decreased.

Part 6, Zero tolerance breeds injustice. - Summary: Initiative 502, refusing to acknowledge that individuals can possess medical cannabis in our state under 21, mandates a zero tolerance driving policy for those under the age of 21. Meaning: if a driver aged 16-21 is pulled over and tested, and they have any detectable amount of THC in their system (even active THC can remain in a person’s body for several weeks), they’re guilty of a life-altering DUID. As the Marijuana Policy Project puts it, “zero-tolerance laws aren’t about making roadways safer; they’re a disingenuous attempt to create a powerful, intrusive tool to root out those who use controlled substances such as marijuana, regardless of whether they operate an automobile under its influence. This type of justice is cruel, unusual, and bad public policy.”

Part 7, Hemp halfway home.- Summary: Initiative 502 approaches hemp in the wrong way. It setups a legal exception to grow hemp – with the caveat that it must contain 0.3% THC or less. The North American Industrial Hemp Council states that hemp often has THC up to 1%, and ofttimes slightly higher. Initiative 502 recreates arbitrary restrictions that, even if the federal government ended their blockade, would put farmers at risk of state-level prosecution (felony charges if enough plants are involved) if their hemp is 0.4% THC or higher. We disagree that this was the appropriate way to approach hemp legalization.